BNUMBER: B-275047
DATE: January 21, 1997
TITLE: Dyna Construction, Inc.
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Matter of:Dyna Construction, Inc.
File: B-275047
Date:January 21, 1997
Theodore M. Bailey, Esq., for the protester.
Lee Casstevens, Esq., Wood, Burney, Cohn & Viles for Braselton
Construction Co., an intervenor.
Diane D. Hayden, Esq., Department of the Navy, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency properly rejected as nonresponsive protester's bid which failed
to acknowledge an amendment that added an additional material
requirement.
DECISION
Dyna Construction, Inc. protests the rejection of its bid and the
award of a contract to Braselton Construction Company under invitation
for bids (IFB) No. N62467-96-B-7664, issued by the Department of the
Navy for construction services to repair/upgrade the quarters used to
house enlisted sailors at the Naval Air Station in Kingsville, Texas.
Dyna's bid was rejected as nonresponsive because the protester failed
to acknowledge amendment No. 0002 to the IFB.
We deny the protest.
As issued, the solicitation asked prospective bidders to submit
lump-sum prices for furnishing all labor, materials, and equipment
required to perform various construction services required to complete
the repair and renovation specified in the statement of work and
solicitation drawings. The project was divided into numerous
sections, including the removal and replacement of doors. The initial
specifications and drawings require the contractor to provide 200 new
sliding closet doors (Door Type 15) in the remodeled bedrooms but did
not identify the frame type to be used to mount the new doors. This
aspect of the project was the subject of a written bidder inquiry in
which the bidder noted that while the solicitation drawings state at
Note 10 on Drawing Sheets A2, A3, and A4 that the contractor must
furnish "[n]ew door, frame, and hardware[ ] [-] [r]efer to door
schedule," there is no indication on the door schedule (drawing sheet
A8) or the bid specifications as to the type of frame to be furnished.
Upon reviewing the drawings and specifications, the agency determined
that the solicitation was ambiguous as to the type of door frame
required. Specifically, the contracting officer noted that a bidder
reasonably could infer that the opening for the type 15 sliding closet
doors could be framed in sheetrock or wood rather than the desired
hollow metal framing since the solicitation package did not identify
any particular door frame for type 15 doors but did so for the other
type doors. The agency also added a requirement for 1" trim.
Thus, the agency issued amendment No. 0002 which stated:
"In detail 1/A8/A8 [of drawing 5317914 (A-8)] add the following
to Door Type 15 between the words "Doors" and "HW-8": 'including
hollow metal frame with 1" x 1" wood trim at the head and
jambs.'"
The agency received seven bids, ranging from $2,153,000 to $4,351,000.
Dyna submitted the apparent low bid of $2,153,838 and Braselton the
next low of $2,220,000; the government estimate was $1,886,617.[1]
Upon review, the contracting officer discovered that while Dyna had
acknowledged amendment No. 0001 it had failed to acknowledge amendment
No. 0002. The contracting officer rejected Dyna's bid because the
agency regarded the amendment as material. The contract was
subsequently awarded to Braselton, the next low bidder. Dyna timely
protested to the contracting agency; the agency denied the protest,
and Dyna filed this protest in our Office.
Dyna alleges that the amendment was immaterial because it did not
impose any new, substantial obligations on the bidders. In this
regard, Dyna asserts that the solicitation as issued required hollow
metal frames for the type 15 closet doors because paragraph 2.7,
Section 08110 of the solicitation required the contractor to provide
"steel frames for doors unless otherwise indicated" and Note 10 of the
solicitation drawings (Drawing Sheets A2, A3, and A4) was silent as to
the type of framing required for these doors. Dyna states that since
there are no "solid" steel door frames (that is, steel door frames are
always "hollow"), the steel frames referred to by paragraph 2.7 had to
be hollow, and concludes that therefore
amendment No. 0002 did not add a new requirement or clarify any
ambiguity regarding the type of framing to be used, but only added a
requirement for wood trim around all the closet doors that, according
to Dyna, had a negligible effect on the cost of frame.
Without resolving the need for the amendment as it relates to the door
frames, we think that the amendment was material in any event because
it added an additional requirement for 1"x1" wood trim for these 200
doors.
Generally, a bid that does not include an acknowledgment of a material
amendment must be rejected, since acceptance of the bid would not
legally obligate the bidder to meet the government's needs as
identified in the amendment. Innovative Refrigeration Concepts,
B-271072, June 12, 1996, 96-1 CPD para. 277. An amendment is material
when it has more than a trivial impact on price, quantity, quality, or
delivery of the item being procured or would have an impact on the
relative standing of the bidders. Federal Acquisition Regulation sec.
14.405(d)(2); Moon Constr. Co., B-228378, Dec. 17, 1987, 87-2 CPD para.
605. No precise rule exists to determine whether an amendment is
material; rather, that determination is based on the facts of each
case. The Hackney Group, B-261241, Sept. 5, 1995, 95-2 CPD para. 100.
First, the record does not support the protester's view that the price
impact of the requirement for wood trim is negligible. Although the
protester has furnished its own estimate for the wood trim requirement
at slightly more than $1,000, the agency has its own estimate of
$10,715 for the work and points out that another Navy engineer priced
the work at $15,000. The protester asserts that the labor to install
the wood trim is minimal[2] and that certain prices the government
used in its estimates are high. The protester, however, has not shown
why the Navy estimate of $10,715, which includes a detailed breakdown
of the work necessary to install the wood trim, does not represent a
reasonable estimate of the cost of the work. Under the circumstances
here, we do not believe, and the protester does not assert, that an
impact exceeding $10,000 is trivial. Second, the agency official in
charge of construction states that the wood trim affects both
aesthetics and "the quality of the final product." The protester does
not rebut this conclusion. Since this contract is intended to both
repair and upgrade sailors' living quarters, we think this requirement
had more than a trivial impact on the quality of the final product.
That being so, the requirement is material even if it had little
effect on bid price. See, e.g., American Sein-Pro, B-231823, Aug. 31,
1988, 88-2 CPD para. 209.
Accordingly, the protest is denied.
Comptroller General
of the United States
1. The estimated cost for the repair work was listed in the amended
IFB as between $1 million and $5 million.
2. The protester estimates labor costs of approximately $500 for the
wood trim on
200 closet doors.